Big Decisions: Rise of the Conservative Majority on the Supreme Court

During the United States Supreme Court’s recently concluded term, the nation saw major changes on keystone issues such as reproductive rights, environmental regulation, First Amendment rights, guns and more. 


According to research by professors Lee Epstein of Washington University and Kevin Quinn of the University of Michigan, published by NPR, the court produced more conservative decisions this term than at any time since 1931. 

“The reality is, the writing has been on the wall for a long time,” Berkeley Law Dean Erwin Chemerinsky said in the Anti-Defamation League and National Constitution Center’s Supreme Court Review. “Once the Republicans blocked Merrick Garland, once Ruth Bader Ginsberg passed away and Amy Coney Barrett was rushed through, once Donald Trump got to put three people on the Supreme Court, it was pretty clear what was going to happen. This term was, in one sense, not a surprise, but yet it was shocking to see decision after decision coming down in a conservative way.”

Along with a conservative majority weighing published opinions, this session also saw a decrease in unanimous decisions — down to 16 from the previous session’s 25 — and an increase in conservative-majority 6-3 decisions — up to 19 from 10 in the 2020 session. 

“The sweeping nature of the decisions, the sheer number of them amounted to sort of a dream fulfilled for hard-line conservatives and a nightmare for liberals and moderates,” Nina Totenberg, NPR’s legal affairs correspondent, said in an interview with NPR. 

According to a recent Gallup poll, public approval of the court is at a low. The poll found, in late June before the court’s controversial rulings on gun laws and abortion, public confidence in SCOTUS reached a record low in Gallup’s nearly 50-year trend, declining 11% over the past year — one of the largest decreases in confidence in any major U.S. institution, second only to the presidency. The prior low in SCOTUS confidence was 30% in 2014, the year when general confidence in major U.S. institutions hit a low point, averaging 31%.

Paul Seby, a Denver Greenberg Traurig shareholder with an appellate practice who has brought multiple cases before the Supreme Court, identified three major trends in Supreme Court decisions this term: separation of duties, protection of expressly enumerated rights and a return to originalism interpretations of SCOTUS jurisdiction. 

“I think what’s different is not that we’ve got six justices appointed by Republican presidents,” Gregory Garre, partner for Latham & Watkins LLP and chair of the firm’s Supreme Court and appellate practice, said in the ADL and NCC’s Supreme Court Review. “But that we have, for the first time, five truly committed constitutionalists and originalists.”

First Amendment

Over the term, SCOTUS issued three major decisions on first amendment rights. 

“[The court is] taking a significantly enhanced enforcement of separation of powers — both horizontal and vertical separation,” Seby said. “They are bending over backward to take cases to enhance, clean up and protect expressly enumerated rights… where there are principles of gun rights, principles of free speech rights or religious exercise rights, those are hugely the priority objective of the conservative majority.”

In May, the court handed down a unanimous decision in Shurtleff v. Boston, which concluded that government flagpoles are a public forum, rather than a platform for government speech. The case arose when the City of Boston refused to allow the resident petitioners to raise the Christian flag in front of City Hall as part of the city’s flag-raising program. 

The City has three flagpoles near its City Hall that generally display the U.S. and Massachusetts state flags. It allows private parties to request permission to temporarily display other flags on the third flagpole, typically in connection with events those parties organize for the public. In the 12 years leading up to this dispute, the City approved all 284 requests to display flags representing a broad array of groups. The Supreme Court ruled that this refusal violated the petitioners’ free speech, determining it was content-based discrimination. 

ADL filed an amicus brief emphasizing the consequence of a finding that Boston’s City Hall flagpoles are a public forum would be that anyone could express any viewpoint from them, subject only to reasonable time, place and manner restrictions, even though “flying a flag from a government flagpole is prototypical government speech.” It argued that allowing any member of the public to fly a flag on Boston’s City Hall flag poles would give private speakers the ability to falsely present their own message as government-approved. 

The ACLU disagreed, arguing that the flag would not have violated the establishment clause if it was only going to be up for one hour.

“The City’s concern was understandable, as displaying a Christian flag (or any religious flag) on government property, especially near a city hall, would in many cases raise serious Establishment Clause problems,” ACLU’s amicus brief said. “Those problems are not present here, however, because the City designated its third flagpole a forum for temporary flag displays by private parties, and the forum has functioned as intended by accommodating numerous speakers and viewpoints.”

Two additional major opinions were published in June — less than a week apart. In Carson v. Makin, the Court held that Maine’s requirement that taxpayer-funded tuition assistance payments be limited to “non-sectarian” education violates the Free Exercise Clause of the First Amendment, requiring the state to fund religious education at private religious schools. 

Over half of Maine’s school districts do not have public secondary schools. To provide for high school education in those school districts, the state paid for students to attend public or private schools which provide secular education, including religiously affiliated schools that didn’t include religious instruction in the curriculum. 

“Maine’s policy to avoid government-funded religious education is rooted in our nation’s historical commitment to the separation of church and state,” Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, said in a statement. 

This decision marks the first time SCOTUS has explicitly required taxpayers to support a specifically religious activity, expanding a previous ruling in Espinoza v. Montana Department of Revenue that prohibited a state from excluding religious schools from private aid programs solely because of their religious character.

In the second June decision, Kennedy v. Bremerton School District, the court concluded that a public high school coach’s decision to lead the team in pre- and post-game kneeling prayer was protected by the Free Exercise and Free Speech Clauses of the First Amendment. This decision eliminates the precedent test laid out in Lemon v. Kurtzman for determining whether a government law or practice violates the establishment clause.

Supporters of the decision root their arguments in originalism — the interpretation that the meaning of a constitutional provision is fixed when adopted, and that decisions should be based on the plain text of the statute. 

“The court is not a democratic branch of government. Its job is to, as the Chief Justice says, to call balls and strikes… and I think the court uses originalism in deciding what’s a ball or a strike,” Seby said. “I think that’s a bedrock aspect of conservative judicial philosophy and… [the court] is very much defining new rules for calling balls and strikes. They are returning to first principles as the way in which they call balls and strikes.” 

Police and Self-Incrimination  

The Supreme Court’s decision in Vega v. Tekoh ruled that a person cannot sue a police officer under federal civil rights laws for failing to read their Miranda rights, which include instructions on the Fifth Amendment right against self-incrimination, even if found not guilty of any crime. 

“This is a textbook example of the way this court tees up major decisions because Vega totally flew under the radar,” Mark Stern, a senior writer covering courts and the law for Slate Magazine, said in the ADL and NCC’s Supreme Court Review. “It came out the same day as Bruen — the gun case — and the day before Dobbs, but it was a major decision. And Justice Alito seeded his decision with all kinds of language that tees up a next case in which the court will say because Miranda warnings are not a constitutional right, we have no power to enforce them and Miranda warnings are gone.”

Reproductive Rights

Near the end of June, following a leak of the decision draft from earlier in the year, the court ruled that there is no constitutional right to abortion, overturning 49 years of precedent and returning the authority to regulate abortion to the states in Dobbs v. Jackson Women’s Health Organization

The case originated from a challenged Mississippi law banning abortion after 15 weeks of pregnancy that had been struck down as unconstitutional by a lower court. The law contradicted the “fetal viability” standard laid out in Roe v. Wade, lower courts found. 

“[The court] say[s] that the only rights protected by the constitution are those in the text or part of the original meaning or those with long history and tradition. If you put that together, the implications are frightening,” Chemerinsky, a Harvard Law School graduate who specializes in constitutional law and law and society, said. “It means that each state right now gets to decide for itself whether abortion’s allowed. Over half the states will prohibit abortion. What it means is that in those states, women with resources can travel to states where abortion is legal, but poor women and teenagers can’t.” 

According to Chemerinsky, what shocked him most about Dobbs “is it’s one of the few times in history where the Supreme Court has taken a right away.” He added that the Court’s assertion that the only rights protected by the constitution are those in the text or part of the original meaning puts contraception, same-sex relationships and marriage equality at risk. 

“I think that fear is overblown… the idea that the court would revisit some of those other precedents,” Seby said. “Abortion is a topic that a lot of people have strong feelings on both sides and the best place for those to be considered is by the people’s representatives at the state level… And I do think that it is a theme of the conservative majority that we will see next term, and thereafter, that the separation of powers is being enforced at the federal level.”

Second Amendment

In June, SCOTUS overturned New York’s long-time concealed carry law, which had a proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm, in New York State Rifle & Pistol Association Inc. v. Bruen. Petitioners argued the requirement violated their Second Amendment right to keep and bear arms. 

In a 6-3 opinion by Justice Clarence Thomas, the court ruled that New York’s requirement violated the 14th Amendment by preventing citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms. The ruling also said that states can only regulate guns if they can point to similar laws in the 18th and 19th centuries. 

Justices Brett Kavanaugh and John Roberts said that, in their view, states could impose various prerequisites before granting a public carry permit, including background checks and training requirements, as long as they restrain licensing officials’ discretion.

“I think something occurred in Bruen that we’ve never seen before. Always before when the court has been originalist, it has used originalism to determine whether there’s a constitutional right,” Chemerinsky said. “This is the first time the Supreme Court has ever used originalism to limit what the government can do.”

Before, whenever the court found a fundamental right, the government has been able to act if it meets strict scrutiny, or act if necessary to achieve a compelling purpose. 

“Justice Thomas’ opinion in Bruen says we’re not going to use strict scrutiny,” Chemerinsky said. “Even if there’s a compelling interest, it doesn’t matter, even if government action is necessary. He said the only kind of government regulations of guns that will be allowed were those that were permitted in 1791 or maybe 1868. This is stunning because it gives Second Amendment rights a greater protection than any other right in the constitution.”

Environmental Regulations

In West Virginia v. Environmental Protection Agency, SCOTUS said that the EPA lacked the authority to regulate greenhouse gas emissions from existing plants and other sources of gas emissions under the Clean Power Plan. The Court ruled that the case fell under the major questions doctrine, concluding EPA didn’t have the explicit authority from Congress to require states to implement new sources of power. 

“Chief Justice Roberts wrote for the court and said when there’s a major question, Congress has to give the agency clear guidance in terms of how to act. He said this was a major question and the statute wasn’t sufficiently specific,” Chemerinsky said. “Now the problem is, the court never defines ‘What’s a major question?’ The court never tells us what’s sufficiently specific. So I think the court here has opened the door to challenges to countless Federal statutes giving agencies power… to challenges to all aspects of the administrative state.”

Seby, who has extensive experience in environment and natural resources and appellate law, was brought in as special assistant attorney general to represent North Dakota on the case.

According to Seby, the Obama administration’s Clean Power Plan imposed new standards for existing coal-based power plants that wouldn’t have been achievable for any existing plant, so the plants would’ve had to be shut down, creating threats to North Dakota’s economy.

“We’re going to let the EPA come up with guidelines… but the state gets to make the ultimate decision, they have to apply the guidelines but they get to take into account considerations the EPA doesn’t [that are unique to each state],” Seby said. “Those kinds of big deal judgments belong to Congress, the people’s representatives, not unelected bureaucrats in Washington, D.C. And so that’s what our case is really about.”

That doesn’t mean the EPA can’t work with the states, Seby added, the states just retain the authority to make the final decision. 

“And in the case of new sources, EPA can dictate all the greenhouse gas emission requirements they want, because the law gives them that authority,” he said. “But it does not do that for existing sources… The court’s decision is going to require a lot more political accountability, because that’s what we do with all the decisions in our country.”

With the 2021 session’s velocity and chosen cases, combined with the record low public confidence in the court, the Supreme Court has set an uncertain tone for future sessions.

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